Shumate v. Johnson Pub. Co.

• Decision Date: 09 February 1956
• Citation: 293 P.2d 531,139 Cal.App.2d 121
• Court: California Court of Appeals Court of Appeals
• Parties: Ikalina SHUMATE, Plaintiff and Respondent, v. JOHNSON PUBLISHING COMPANY, Inc., John H. Johnson, Robert Johnson and James Goodrich, Defendants, Johnson Publishing Company, Inc., and John H. Johnson, Appellants. Civ. 20971.

Page 531

293 P.2d 531

139 Cal.App.2d 121

Ikalina SHUMATE, Plaintiff and Respondent, v. JOHNSON PUBLISHING COMPANY, Inc., John H. Johnson, Robert Johnson and James Goodrich, Defendants, Johnson Publishing Company, Inc., and John H. Johnson, Appellants.

Civ. 20971.

District Court of Appeal, Second District, Division 3, California.

Feb. 9, 1956.

Loeb & Loeb, Herman F. Selvin, Allen E. Susman, Los Angeles, and Harry L. Gershon, Beverly Hills, for appellants.

Leo Branton, Jr., Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendants from a judgment for plaintiff entered on a jury verdict in an action for libel.

'Jet' is a periodical with national circulation published weekly in Chicago by defendant Johnson Publishing Company. Defendant John H. Johnson is editor and publisher of 'Jet.'

Plaintiff and Dr. Lincoln Shumate were married in June 1952. They were well-known Negro residents of Los Angeles. On April 23, 1953, plaintiff filed suit for separate maintenance against Dr. Shumate alleging adultery with a named white woman on a number of occasions. Dr. Shumate cross-complained for divorce, alleging plaintiff had persistently refused to have marital relations with him and had committed adultery on several occasions with one Lorenzo Spencer, the husband of Vaino Spencer, plaintiff's attorney in the separate maintenance action. These charges and countercharges were widely featured in the Negro press of Los Angeles and other cities.

On May 5, 1953, Lorenzo Spencer filed an action against Dr. Shumate for libel based on the allegations of the cross-complaint. Immediately thereafter, Dr. Shumate retracted all of his charges of adultery between plaintiff and Spencer, and signed an agreement which is set out in the margin. ¹ He thereupon dismissed the cross-complaint against plaintiff, and Spencer dismissed the libel suit against Dr. Shumate.

On May 6, 1953, James Goodrich, a writer for defendant company and Hollywood editor of 'Ebony,' a magazine published by defendant company, called on Mrs. Spencer at the direction of the managing editor of 'Jet.' Mrs. Spencer showed Goodrich a copy of the retraction Dr. Shumate had signed and told him Dr. Shumate was dismissing his cross-complaint. Prior to May 14 Mrs. Spencer sent Goodrich at his request a statement of the status of the separate maintenance action, which he forwarded to the Chicago office of 'Jet.'

On May 14, 1953, Dr. Shumate issued a sworn public apology which is set out in the margin. ² On the same day Mrs. Spencer sent a copy of the apology to Goodrich. Goodrich immediately sent the copy of the apology to the managing editor of 'Jet' in Chicago.

In the May 14, 1953, issue of 'Jet' there was published an article titled 'Wealthy Los Angeles Medic Charges Wife With Adultery,' set out in the margin, ³ with photographs of plaintiff, Dr. Shumate, Spencer and Mrs. Spencer. In the May 28, 1953, issue of 'Jet' there was published an article title 'Calif. Medic Drops Adultery Charge Against Wife,' set out in the margin. ⁴ Nothing was said in the article about the apology.

On August 14, 1953, plaintiff was granted an interlocutory decree of divorce from Dr. Shumate by default on the ground of cruelty. Dr. Shumate did not testify.

In the August 27, 1953, issue of 'Jet' there was published the article on which this action is predicated. It reads:

'Are Women Changing Our Sex Morals?

'By Robert Johnson

'A wealthy Los Angeles physician became the subject of considerable tonguewagging recently as the result of a divorce action he brought against his pretty socialite wife. He testified that his wife had disregarded her marital vows to bestow intimate favors upon her employer, but had repeatedly refused marital relations with him. The wife, however, countered. In defense of her seeking a lover and rejecting her husband's love-making, she told the court: 'I can only refer you to the Kinsey report.'

'What family secrets the accused wife revealed in her brusque remark became immediately apparent to friends of the couple, but the surprised doctor had not considered that his wife would go to such lengths in defending her marital misbehavior. For like many husbands who cling to the age-old concept of a double standard in marriage morality, he had rushed to a divorce court, secure in the knowledge that it would be the wife who would be held up to public ridicule for her sexual misconduct.

'Today, however, husbands are becoming more and more aware that double standards in sex morals have all but disappeared where wives are concerned, and the old adage, 'What's good for the goose is good for the gander' is a more widely accepted code for modern women. Says New York gynecologist and psychiatrist Dr. Lena Levine: 'It's not a matter of the old-fashioned sex codes being no longer accepted. Rather, among more and more women, the codes are not even considered.'

'Actually, the release this week of information contained in Dr. Alfred Kinsey's long-awaited report, Sexual Behavior in the Human Female (see next page), will point up startingly that women have changed our sex morals. It will reveal that there remains little correlation between our Puritannical codes and the actual sex adventures of women.

'Experts and counselors in courtship, marriage and family relations also point out that sex morals have become more relaxed because of a behavior trend which points to: 1) increasing premarital sexual adventures and promiscuity among women; 2) increasing marital unfaithfulness among 'emancipated' wives; 3) increasing acceptance of easy divorce and quick remarriage without moral or social stigma.

'Explained one counselor: 'In the past when her mate was not particularly virile, the wife was secretly glad. Today, woman is becoming more released. She very well may go elsewhere when she finds the man not as capable as she might like. The same often holds true for the wife who suspects that her husband is cheating.'

'Sociologist Walter H. Chivers who conducts marriage and family institutes in Negro colleges, has also noted among young people an increased concern over sex mores. Says he: 'On most college campuses, the opinion is that the mores are not as strong as they used to be. Yet, every man wants to believe that infidelity is associated not with his woman, but the other woman.''

On the page on which the article begins there is a sketch of three nude women, each with an arm around the other. Immediately next to the article, the following appears in a box:

'What Kinsey Will Tell About Women

'Pre-marital Relations

'About 50 per cent of married women have premarital sexual relations.

'Unfaithful Wives

'More than one-fourth (26 per cent) of all married women cheat on their husbands and a large percentage of them--mostly college-educated- --plan to continue their infidelities.

'Homosexuality

'Nearly one-fifth of all women (about 19 per cent) have homosexual contacts at some time in their lives.

'Virginity

'While clinging to their 'virginity,' some 32 per cent of women experience an emotional climax through petting with men. Techniques range from simple kissing to unconventional sex practices.

'Love-Making

'During marriage, more than half of all women allow their husbands to practice oral love-making, and about 49 per cent of them engage in similar practices with their husbands.

'Morality

'If sex laws were rigidly enforced, about 85 per cent of all women would be jailed as sex offenders for committing 'unnatural, immoral, abnormal or indecent acts.''

The evidence is undisputed that the article was published of and concerning plaintiff and that readers derived from the words a defamatory meaning and understood them to refer to plaintiff.

The jury returned a verdict for plaintiff against defendants Johnson Publishing Company and John H. Johnson for $5,000 general damages and against each of them for $5,000 exemplary damages. Defendants appeal from the judgment that followed. Defendants also appeal from the order denying their motion for a new trial. Since that order is not appealable, the appeal therefrom will be dismissed.

The assignments of error are: (1) 'Jet' is a newspaper as a matter of law and since plaintiff neither demanded a retraction nor pleaded or proved any special damages, Civil Code, § 48a, precludes recovery. (2) The evidence without contradiction established that the allegedly libelous article was true. (3) The court erred in striking a copy of a Los Angeles newspaper from the evidence. (4) There is no evidence to support the awarding of exemplary damages against either defendant.

Defendants may not urge the first assignment of error. The complaint alleged that 'Jet' is 'a weekly magazine of national circulation.' The answer of defendants admitted the allegation. At the opening of the trial defendants were permitted to file an amended answer in which they denied the allegation and alleged 'Jet' is a newspaper. In presenting her case in chief plaintiff offered no evidence on that issue except the copy of 'Jet' containing the allegedly libelous article and other copies of 'Jet.' At the close of plaintiff's case in chief defendants made a motion for a judgment of nonsuit on the ground 'plaintiff has failed to offer any evidence whatsoever on the issue of whether this is a magazine or a newspaper. I think that plaintiff has alleged that this is a magazine, and that is denied; and that is certainly in issue.' The motion was denied. Two witnesses were called by defendants as experts. Each testified over plaintiff's objection that 'Jet' is a newspaper. The testimony of one of them was stricken apparently on the ground he was not qualified. Other than the superior court file in the separate maintenance action, defendants' evidence was directed solely to proving that 'Jet' is a newspaper and not a magazine. Defendants offered and the court gave three instructions, the effect of which was to submit to the jury as a question of fact whether 'Jet'...